Judge files proposed decision in favor of Lake County in Rattlesnake Island suit

LAKEPORT -- Lake County's newest judge indicated Tuesday he planned to rule in favor of the county government in the lawsuit stemming from approval given to a construction project on Rattlesnake Island.

"There is no substantial evidence that the changes to the island, foretold by the scope of the project, cause such an alteration or change to the island that the historical resource is materially impaired," Judge Michael S. Lunas wrote in his proposed statement of decision.

The suit stems from Friends of Rattlesnake Island, an advocacy group, opposing a 2011 decision by the Lake County Board of Supervisors (BOS) to support Bay Area businessman John Nady's proposal to build a house, caretaker's cabin and standalone bathroom on land he owns on the island.

Located in southeastern Clear Lake outside Clearlake Oaks, Rattlesnake Island is a culturally significant site for the Elem Indian Colony of Pomo Indians. Some tribal members are part of the Friends group.

"The values and feelings that the Elem Pomo have for the island as a historical and spiritual place are definite and certain," Lunas wrote. "However, this project is not the barrier to the physical contact, access and use of the island -- Nady's ownership controls those claims."

The parties in the lawsuit have until June 5 to file objections to the proposed ruling. A final decision would come after the judge considered any timely opposition documents. Lunas could order an additional hearing in the interim.

Attorney Rachel Mansfield-Howlett, who represented Friends of Rattlesnake Island, said Wednesday her clients planned to submit objections within the required timeframe.

"It's somewhat unusual to be given an opportunity to file further briefs after the court has heard oral argument," she added. "So we are heartened that Judge Lunas has an open mind and is willing to revisit the decision after we have clarified the areas where he stated that there was some ambiguity."

Lake County Counsel Anita Grant declined to comment with the decision not yet finalized.

The proposed ruling by Lunas, who took the bench in January, was filed exactly three months after attorneys argued the case during a daylong court trial at the Lake County Courthouse.

The advocacy group asked the court to find fault with the BOS' 3-2 vote in October 2011 to grant Nady's appeal of a 2010 Lake County Planning Commission decision to require an environmental impact report (EIR) focusing on archeological resources.

The county, a respondent in the lawsuit, and Nady, a real party in interest, argued the previously completed environmental review was sufficient and an EIR unnecessary.

The judge indicated Tuesday he was inclined to side with the county in the dispute.

Lunas wrote he proposes to determine that the county's environmental findings complied with state law and that county officials met their requirement to mandate appropriate mitigation measures.

"There is not substantial evidence of a fair argument that the project as mitigated, does not reduce potential effects to a less than significant level," he added.

An issue introduced during the Feb. 21 trial was the fact a significant amount of construction had already occurred in the wake of Nady receiving county approval.

The judge wrote that, as he saw it, relief could not be granted in relation to the group's claims regarding the impacts of underground excavation and ground disturbance because those issues are now moot.

"The importance of further mitigation related to the excavation and construction impact on historical/archeological resources for the site is futile," Lunas stated. "Those impacts, whether significant or not, have occurred. There is no evidence to suggest any such impacts continue."

Additionally, no substantial evidence was presented to support the notion that "the other feasible mitigation measures argued by Friends would substantially lessen any significant impact," according to Lunas.

There is no timetable for when the judge will issue his final decision. It is unclear whether additional hearings will occur.

Fredric Schrag, who represents Nady, did not respond to an emailed request for comment, as of Wednesday afternoon.

Jeremy Walsh is a staff reporter for Lake County Publishing. Reach him at 263-5636, ext. 37 or jwalsh@record-bee.com. Follow his court coverage on Twitter, @JeremyDWalsh or #Lakecourt.